Opinion here (or here: 11-393c3a2).
The law includes the Indian Health Care Improvement Act, which apparently still stands as well. Tribal amicus brief is here.
Supreme Court
Ironies of the Patchak Decision
Here are some interesting ironies of the reasoning and outcome in Patchak.
First, the prudential standing of David Patchak to sue the federal government to protect the rural character of his community (and related objections) — under Michigan law (I think) Patchak would have a much more difficult proof than he does under the conglomeration of statutes Patchak is using (APA, QTA, and I guess IGRA). Just a few weeks ago, the Michigan Court of Appeals (Tobin v City of Frankfort — thanks to B.A. for pointing this one out for me) rejected the standing of a landowner to challenge a development in Benzie County. Here were the injuries complained of:
Intervenor argues that it has established through its members’ affidavits that it has standing to intervene and pursue its member’s claims. The relevant declarations by FOBB members in their September 2000 affidavits primarily detail concerns about (1) increases in population, traffic, noise levels, lights, air pollution, and property taxes; (2) decreases in home values, aesthetics of the neighborhood, and environmental value caused by tree and vegetation removal attributable to the development; and (3) the potential presence of commercial establishments. The generalized concerns relating to environmental impacts, population increases, aesthetics, and pecuniary harm do not suffice to demonstrate “special damages . . . different in kind from those suffered by the community, so as to qualify [intervenor] as an aggrieved party.” Joseph, 5 Mich App at 571. Alternately phrased, development-related aesthetic changes, population increases, environmental impacts, and pecuniary harm will be experienced by other community members to the same extent as affiants.
But that’s not prudential standing, you say. True, but what an irony. This is Patchak’s list of alleged injuries in a nutshell:
To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.”
Justice Kagan’s majority opinion then uses the Cohen Handbook as support for the proposition that since Interior takes land into trust for the benefit of Indian tribes (often economic benefit), then anyone seemingly opposed to tribal economies has standing (sorry for the long block quote):
Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.
So in Michigan, someone who objects to development can’t sue because no one has adopted a statute specifically authorizing such development. In Indian law, someone who objects to tribal development can sue because Congress specifically did adopt a statute authorizing land purchases. The fact that Section 5 exists to remedy incredible tribal land dispossession and poverty is irrelevant.
Second, the land development question — Gun Lake Casino is up and running, and the State of Michigan and the local units of government (well, and the Tribe), are raking in millions upon millions. Patchak wants that to end (because apparently he didn’t care that Wayland’s football players were under a pay-to-play arrangement; more details here).
Arctic Slope Native Assn. v. Sebelius Granted, Vacated and Remanded (GVR)
As we guessed earlier, in light of Salazar v. Ramah Navajo Chapter, the Supreme Court GVR’d Arctic Slope v. Sebelius this morning. The case returns to the Federal Circuit for further consideration.
Sebelius v. Southern Ute Indian Tribe was denied
The order list is here.
In other Supreme Court news:
No health care decision today.
U.S. v. Arizona (immigration law case) was reversed in part and affirmed in part.
Legislating in Light of the ideology and Politics of the Super-Legislature (On Obamacare and an Oliphant Fix)
This week, the Supreme Court likely will strike down the individual mandate of the health care law, and perhaps go so far as to strike the whole thing down. It is telling to hear about how Democratic Congressional leaders never took seriously arguments that the health care law was unconstitutional.
Under the current constitutional law, it IS constitutional. But the Supreme Court can use a vehicle like Obamacare to drastically change constitutional law. That’s how judicial review works. Ideology matters. Politics matters. Elections matter. Only the hardest cases reach the Supreme Court, and those cases are usually cases where prior precedent fails. The vast majority of Americans want Obamacare struck down. It would be shocking if the most conservative Supreme Court in memory DIDN’T strike it down.
Tribal advocates should be feeling deja vu, of course. The Court changes Indian law all the time. Ideology matters here, more than politics (because most Americans couldn’t care less about Indian law).
In the past weeks, during the VAWA Reauthorization and SAVE Native Women Act debates, Dems assumed the constitutionality of a partial Oliphant fix. Under current law, it’s obviously constitutional. But the Supreme Court can change things. And it does, as Indian law observers know.
Harold Monteau pointed out the disingenuity of the Congressional Research Service report asserting the unconstitutionality of a partial Oliphant fix. He was right to do so under the law, but that doesn’t make the report wrong.
If I am right and Obamacare goes down, then the world will know what Indian law observers have known (or should know) for a long while.
TOMORROW, if the health care decision doesn’t come out, why Justice Kennedy’s consent theory of tribal governance may play an important role in the theorizing constitutional limits on the commerce clause.
IPR on the Patchak Decision
An excerpt:
A decision this week by the U.S. Supreme Court is seen as a setback for Indian tribes. The case involves the Gun Lake Tribe and its casino near Grand Rapids.
A neighbor is suing saying the casino is lowering property values and ruining the neighborhood.
As tribal attorneys see it, the Court opened a way for just about anyone to challenge the legitimacy of tribal lands. Land taken into trust by the federal over the last several years is especially vulnerable.
Matthew Fletcher is a member of the Grand Traverse Band of Ottawa and Chippewa Indians. He’s attorney and professor of law at Michigan State University.
And he tells IPR the decision is seen as a big set-back in Indian Country.
Ralph Rossum on Justice Thomas’ Views of the Three Commerce Clauses
Ralph A. Rossum (author of the definitive legal history of California v. Cabazon Band) has posted his paper, “Clarence Thomas’s Originalist Understanding of the Interstate, Negative, and Indian Commerce Clauses,” on SSRN. It is available in the University of Detroit Mercy Law Review. (Hat tip)
Here is the abstract:
During his twenty years on the Supreme Court, Justice Clarence Thomas has pursued an original understanding approach to constitutional interpretation. He has been unswayed by the claims of precedent — by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. Like too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent — focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means — hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the Justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood — to the original understanding of the Constitution.
In what follows, Section I describes Thomas’s originalism and contrasts it with Antonin Scalia’s different kind of originalism. Section II explores Thomas’s originalist understanding of the limits of Congress’s power under the Interstate Commerce Clause. Section III focuses on Thomas’s rejection of the Court’s claim of power to invalidate state laws burdening interstate commerce under the negative Commerce Clause on originalist grounds. Section IV addresses Thomas’s rejection of the view that the Indian Commerce Clause gives the Congress plenary power in Indian country and his call in United States v. Lara for the Court to “examine more critically our tribal sovereignty case law.” Section V concludes.
I think Prof. Rossum is spot on when it comes to the Indian Commerce Clause, especially in terms of his excellent description of how the First Congress passed a whole series of statutes involving Indian affairs culminating in the first Trade and Intercourse Act.
ICT In-Depth Report on Patchak Decision
Here.
An excerpt:
Asked if there is any lemonade to the lemon of a decision from the high court, Fletcher said, “Lemonade? Sotomayor is Indian country’s best friend. Read the three consequences part of her dissent and you can see she actually gets it. She understands the consequences of these decisions. She gets it more than any other Justice in Supreme Court history. And that’s a fact.”
Sotomayor’s first point of dissent is that the Quiet Title Act clearly states that the right to sue the federal government in property disputes “does not apply to trust or restricted lands.” The exception, Sotomayor says, reflects the view that a waiver of immunity is inconsistent with treaty commitments and other agreements with the tribes. By exempting Indian lands, Congress ensured that the government’s “‘solemn obligations” to tribes would not be “abridged’ without their consent. Her second argument is that the QTA provides for the preservation of the government’s right to retain possession or control of property even if a court rules that the government’s property claim is invalid. This provision ensures that a negative court ruling would not interfere with government operations. Sotomayor’s third point is the QTA limits the class of individuals who are allowed to sue the government to those with a “right, title or interest” in the property.
SCOTUSblog Coverage of Patchak Decision
Here.
And their plain language description:
In this case, the federal government took certain land into trust for an Indian tribe, which means that it took ownership of the land to allow the tribe to use it. The tribe planned to build a casino on the land. The Supreme Court held that a neighbor could sue the government to stop the casino project on the ground that the law did not permit the government to take the land into trust for this particular tribe
.
SCOTUSBlog Recap on Ramah Navajo Chapter’s Big WIN
Here, with an excerpt on the plain English:
Plain English summary
Every contract is a deal between two parties, and both are supposed to perform their part of the deal. That means that, if the job covered by the contract is done as it should be, then that party is entitled to be paid what has been promised. This case involved Indian tribes that sued the government because it did not pay all of the costs it had promised to cover when the two sides made their deal for the tribe to provide education and other government-like functions for their members. The Court ruled that a promise is a promise, even if the government doesn’t have immediately available enough money to pay all of the contractors it had promised to pay for their services. Congress has to locate the money to cover such a promise, the Court said.
Gun Lake Band’s Press Release on Patchak
Here:
The text:
Bradley, Michigan – Today the U.S. Supreme Court rejected motions by the Gun Lake Tribe and U.S. government seeking to have David Patchak’s lawsuit dismissed on procedural grounds. The Court’s decision expressly declined to say anything about the merits of Patchak’s lawsuit. It simply allows Patchak to go forward with his lawsuit back at the lower court. The Tribe is ready to continue fighting the lawsuit and is confident that it will ultimately prove that Patchak’s claims are completely without merit.
“The Supreme Court clearly stated that this decision was not based on the merits. This is simply a procedural decision that has no impact on operations at Gun Lake Casino. The Casino will continue to operate, employ over 800 area residents, and provide millions of dollars to state and local governments,” said D.K. Sprague, Tribal Chairman.
The likely course of action is a remand by the U.S. Court of Appeals District of Columbia Circuit to U.S. District Court for the District of Columbia before Judge Richard Leon. Judge Leon’s decision in January of 2009 to grant a procedural motion by the Tribe and U.S. would have ended Patchak’s lawsuit.
“This simply means that Patchak’s lawsuit can go forward before the federal courts, which may take many more years to finally resolve it. We are ready to continue that fight in federal court and we are confident the facts will clearly prove once and for all that Patchak’s claims have absolutely no merit. The Tribe would prefer to devote its resources to the economic development of the area; however, since Patchak’s lawsuit dictates otherwise, the Tribe will do what is necessary to prevail.”
Turtle Talk 
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